9911796707
TMI Blog2017 (4) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... en Bose Avenue, Kolkata, but in the order dated 11th February, 2015 passed by the Regional Director reflect the address as 65, Dilkhusa Street, Kolkata. How and when it is shifted from 55, Bhupen Bose Avenue, Kolkata to 65, Dilkhusa Street, Kolkata is also not explained. More so, when the Memorandum and the Articles of Association show the address of the Company as 55, Bhupen Bose Avenue, Kolkata. How the Regional Director allowed/approved the application of the applicants/Respondents 1,2 and 3 showing the address as 65, Dilkhusa Street, Kolkata, without alteration of the Memorandum and Articles of Association as required under Section 12(4) & 13 of the Companies Act, 2013? - Held that:- It is a settled principle of law that the conduct of the parties is a very relevant factor to be considered in the equitable proceeding. The person/party seeking equitable relief, must come with clean hand and good conduct failing which it constitutes a gross abuse of the process of law and equally, he who seeks equity, must do equity and he who does equity, must come with clean hand. As discussed find that the equity is in favour of the petitioner. Rather, it is the conduct of the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Office of the Applicant/Respondent No. l, Company from the State of West Bengal to the State of Uttar Pradesh, was allowed. 2. On perusal of the record, as well as of the order dated 11-02-2016, passed by Shri Narendra Kumar Bhola, Regional Director, Ministry of Corporate Affairs, it reflects that the petitioners/applicants (Respondent Nos. 1,2 and 3) have filed one application under Section 13(4) of the Companies Act, 2013 for confirmation of the alteration of Clause II of the Memorandum of Association of the applicant/Respondent No. l, Company for shifting its registered Office from the State of West Bengal to the State of Uttar Pradesh as approved by the members by special resolution passed in accordance with Section 114 of the Companies Act, 2013 at its Extraordinary general meeting held on 17-02-2015. 3. Admittedly, applicants (Respondent Nos. 1, 2 and 3) convened an Extraordinary general meeting of the Company on 17-02-2015 and in the said meeting, a special resolution was passed approved by the members, whereas the petitioner/non-applicant in the CP, holding 21.76% of the shares of the Company, has challenged the holding of the said meeting dated 17- 02-2015 in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inary general meeting of the company. However, the board can also call an EGM at the demand of members as mentioned below : (a) in the case of a company having a share capital, such number of members who hold, on the date of the receipt of the requisition, not less than one tenth of such of the paid up share capital of the company as on that date carries the right of voting; (b) in the case of a company not having J share capital, such number of members who have, on the date of receipt of the requisition, not less than one-tenth of the total voting power of all the members having on the said date a right to vote, call an extraordinary general meeting of the company within the period specified in subsection. 7. The pre-requisite of holding the EOGM by Board of Directors viz. - I giving at least 21 clear days' notice in writing. The said notice shall contain the place, date, day and hour of the meeting and shall contain a statement of business to be transacted at such meeting. The Notice of meeting shall be given to (a) every member of the Company/legal representative of any deceased member or the Assignee of an insolvent member; (b) Auditor or the Auditors of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Dilkhusa Street, Kolkata with effect from 21-01-2015 and thereafter by alleged resolution dated 17-02-2015 from 65, Dilkhusa Street, Kolkata, State of West Bengal to the State of Uttar Pradesh as reflected in Para VI-Page 36 of the Company Petition with heading Alleged change in registered Office of the Company with effect from 21st January, 2015, and thereafter alleged resolution dated February 17, 2015 . 10. As per document annexed by the petitioner as Annexure P1 - page 71, the Memorandum and the Articles of Association, the registered Office of the Company is/was shown as 55, Bhupen Bose Avenue, Kolkata at all material time. But subsequently, as alleged by the petitioner, the same was/is changed to/shifted to 65, Dilkhusha Street, Kolkata with effect from 21-01- 2015, which fact is also admitted by the applicants/respondents. 11. It is also alleged by the petitioner(s)/non-applicants that he was/were not aware of any resolution or purported resolution taken/approved at any point of time by the Company for shifting of the registered office from the State of West Bengal to the State of Uttar Pradesh since no notice of any such shareholders' meeting or EOGM or AGM was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company. The said act of applicants/respondent Nos. 1,2 and 3 is in violation of the relevant provisions of the law. 13. In order to controvert the contention of the petitioner/non-applicant as well as of the respondent No. 4 with regard to the service of notice and/or issuance of notice, the applicants/respondent Nos. 1,2 and 3 have not produced a single document so as to show that, it is in the knowledge of the petitioner(s) and the respondent No. 4 with regard to the convening of the EOGM on 17-02-2015 as reflected in the order dated 11-02-2016 of the Regional Director, Ministry of Corporate Affairs, West Bengal, Kolkata and taking of a special resolution as approved by the members. 14. The applicants/respondent Nos. 1,2 and 3 also have failed to produce the paper/documents as reflected in paragraph 3 of Annexure 'C' i.e. order dated 11-02-2016 of the Regional Director, West Bengal wherein it was clearly observed that in compliance of Rule 30 of the Companies Incorporation Rules, 2014, the applicants respondents 1, 2 and 3 produced (i) affidavit verifying the application ; (ii) affidavit in terms of the rules; (iii) affidavit regarding employees; (iv) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant/Respondent No. l, Company and applicants/respondent Nos. 2 and 3. the Company Petition No. 38/2016 is filed by the petitioner wherein he has challenged the Extraordinary general meeting and shifting of the registered office from 55, Bhupanedra Bose Avenue, Kolkata to 65, Dilkhusa Street, Kolkata with effect from 21-01-2015 and further from 65, Dilkhusa Street, Kolkata, State of West Bengal to the State of Uttar Pradesh with effect from 17-02-2016. The purported Extraordinary general meeting showing to be held on 17-02- 2015 and the resolution, if any, passed therein, was not as per the provisions of law. The applicants/respondents 1, 2 and 3 submitted that notice of extraordinary general meeting has been duly served to the petitioner and respondent No. 4 but they failed to show or prove the service of notice upon the petitioner and/or upon the respondent No. 4 and/or upon any other members/shareholders as required under Rule 30 of the Companies (Incorporation) Rules, 2014. Further, the Memorandum and the Articles of Association (Annexure P1 of the Company Petition) shows the Registered Office at 55, Bhupen Bose Avenue, Kolkata, but in the order dated 11th February, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
